Citation Nr: 9836683
Decision Date: 12/16/98 Archive Date: 12/30/98
DOCKET NO. 92-12 363 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
Entitlement to service connection for a bilateral foot
disability secondary to service-connected postoperative
residuals of a herniated nucleus pulposus at L5-S1.
Entitlement to service connection for cervical and thoracic
spine disabilities, secondary to postoperative residuals of a
herniated nucleus pulposus at L5-S1.
Entitlement to an increased rating for the postoperative
residuals of a herniated nucleus pulposus at L5-S1, evaluated
as 20 percent disabling, for the period prior to June 10,
1995.
Entitlement to an increased rating for the postoperative
residuals of a herniated nucleus pulposus at L5-S1, currently
evaluated as 40 percent disabling.
Entitlement to an increased rating for generalized anxiety
disorder with panic attacks, currently rated as 30 percent
disabling.
Entitlement to an increased (compensable) rating for
keratosis pilaris.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant, spouse and a Department of Veterans Affairs (VA)
vocational rehabilitation counselor
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran served on active duty from December 1954 to
October 1966.
This case came before the Board of Veterans’ Appeals (Board)
on appeal from an August 1990 rating decision of the VA
Regional Office (RO) in Hartford, Connecticut which denied
secondary service connection for thoracic and cervical spine
conditions as well as for a foot disorder and held that a
rating in excess of 20 percent for postoperative residuals of
a herniated nucleus pulposus at L5-S1 was not warranted. The
veteran also filed an appeal from a February 1991 rating
decision which denied a compensable evaluation for service-
connected keratosis pilaris. The case was Remanded by the
Board in June 1993 and April 1995 for further development of
the record.
By a rating decision in November 1995, the RO increased the
evaluation for postoperative residuals of a herniated nucleus
pulposus at L5-S1 to 40 percent disabling, effective from
June 10, 1995. However, the veteran continued to express
disagreement with that rating and, moreover, did not withdraw
his claim for a rating greater than 20 percent for the period
prior to June 1995. Accordingly, the issues are as listed on
page one of this decision.
An April 1997 rating decision also denied an increased rating
for generalized anxiety disorder, evaluated 30 percent
disabling. The veteran filed a notice of disagreement with
that determination in May 1997, and the RO furnished him with
a statement of the case concerning that issue in June 1997.
Although the RO did not certify that issue for appellate
consideration, apparently because the veteran did not
complete his appeal, the Board notes that in September 1997
the veteran wrote to the RO regarding his appeal. On a
liberal reading of that letter, the Board believes that the
veteran’s comments express continued disagreement with the
RO’s denial and finds, therefore, that the letter meets the
requirements for a substantive appeal. 38 C.F.R. §§ 20.202,
20.203 (1998). Moreover, the letter was received within the
period allowed for the veteran to complete his appeal.
38 C.F.R. § 20.302 (1998). Therefore, the issue of
entitlement to an increased rating for generalized anxiety
disorder is properly before the Board at this time. However,
appellate consideration of that issue will be deferred,
pending completion of the additional development requested in
the Remand that follows this decision.
The issues of secondary service connection for a bilateral
foot disability and of an increased evaluation for
postoperative residuals of a herniated nucleus pulposus at
L5-S1 subsequent to June 10, 1995, will also be addressed in
the Remand.
To the extent that the veteran’s comments may raise the
issues of entitlement to a total disability rating on the
basis of individual unemployability and to an increased
rating for hearing loss, neither of those issues has been
adjudicated or otherwise developed for appellate review. The
veteran’s comments in that regard are referred to the RO for
appropriate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative argue that his cervical
spine and thoracic spine disorders developed secondary to his
service-connected low back disability, and that a compensable
evaluation is warranted for his keratosis pilaris. He also
contends that the residuals of his herniated nucleus pulposus
at L5-S1 are more severe than is reflected in the 20 percent
rating for the period prior to June 10, 1995, warranting an
increased rating for the disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against secondary service connection for cervical
spine and thoracic spine disorders. It is also the Board’s
decision that the preponderance of the evidence is against a
grant of a compensable rating for keratosis pilaris and also
against the assignment of an increased rating for a herniated
disc at L5-S1 prior to June 10, 1995.
FINDINGS OF FACT
1. The medical evidence does not show that a cervical spine
disorder or a thoracic spine disorder resulted from the
veteran’s service-connected lumbar disc disability.
2. The veteran’s service-connected keratosis pilaris is not
presently active and is asymptomatic.
3. Prior to June 10, 1995, the residuals of the veteran’s
herniated disc at L5-S1 included only occasional episodes of
low back pain that radiated into his left leg and occasional
mild sensory loss and mild weakness in the left leg. No
muscle spasm, limitation of motion, or other neurological
impairment was shown. The symptoms and findings were
consistent with not more than moderate impairment during the
pertinent time period.
CONCLUSIONS OF LAW
1. The claimed cervical and thoracic spine disorders are not
proximately due to or the result of a service-connected
disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R.
§ 3.310 (1998).
2. Keratosis pilaris is noncompensably disabling under the
applicable schedular criteria. 38 U.S.C.A. §§ 1155, 5107,
7104 (West 1991 & Supp. 1998); 38 C.F.R. §§ 4.1, 4.2,
Diagnostic Codes 7899-7806 (1998).
3. Postoperative residuals of a herniated nucleus pulposus
at L5-S1 were not more than 20 percent disabling prior to
June 10, 1995. 38 U.S.C.A. §§ 1155, 5107, 7104; 38 C.F.R.
§§ 4.1, 4.2, 4.10, 4.40, 4.45, Diagnostic Code 5293 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The service medical records reflect that in August 1961 the
veteran complained of chest and neck pain, reporting that he
felt run down. No findings specific to the neck were
recorded. In January 1962, he was hospitalized for 2 days
for treatment of lumbosacral strain sustained during a
physical training test. Although the disorder was diagnosed
initially as myositis, the veteran later expressed further
complaints of radiating pain and was treated with physical
therapy for neuralgia. The only reference to a skin
condition was recorded in March 1965, at which time the
diagnosis assigned was Id reaction. In December 1965, in
connection with evaluation of the veteran’s complaints of
neck pain, an x-ray of the cervical spine was interpreted as
being negative; headaches were diagnosed and treated. At the
time of the veteran’s separation examination, no abnormal
clinical findings concerning the musculoskeletal system,
neck, or skin were recorded and the veteran did not report
any pertinent complaints.
At the time of a VA compensation examination in December
1966, the veteran reported tension headaches; however, no
references to a cervical or thoracic spine disorder were
recorded. Similarly, the reports of VA orthopedic
examinations in 1968 and 1970 contain no references to neck
or upper back complaints or findings. A dermatological
examiner in 1966 noted that for 6 years the veteran had had a
skin eruption, which had begun in service in 1954. A
generalized rash was noted, most marked on the upper arms and
shoulders. The veteran indicated that it itched somewhat in
the summer, but never cleared completely. The assigned
diagnosis was generalized keratosis pilaris.
A February 1967 rating decision granted service connection
for keratosis pilaris and assigned a noncompensable
evaluation.
Service connection for chronic lumbosacral sprain was
established by a rating decision in December 1968 and was
evaluated as 10 percent disabling.
A private hospital report dated in September 1975 notes that
the veteran had had a lumbar laminectomy in 1968 for a
herniated disc and that he had also had arthritis of the
cervical and upper dorsal spine, where discogenic disease had
been noted on previous x-rays. No specific findings
concerning those areas were reported at that time, however.
The reports of visits to a private dermatologist in the 1980s
reflect multiple instances of surgery to remove basal cell
carcinomas on the veteran’s nose and ears. In July 1984, a
biopsy from the skin of his back revealed a melanocytic nevus
and a sparse pilar cyst and another biopsy from his back in
November 1986 showed a cutaneous horn with evidence of an
underlying old verruca.
The record also reflects that the veteran was treated by VA
for reported neck pain radiating into the left shoulder and
arm and pain in the upper thoracic spine during the 1980s.
An x-ray study early in 1988 showed the presence of
degenerative changes in those spine segments. In July 1988,
the veteran reported that he had low back pain in service and
that, after his post-service back surgery, he began to
experience pain from the low back to the neck every now and
then.
VA outpatient clinic reports dated in August and September
1989 note that the veteran underwent a lumbar laminectomy a
few months earlier. Another examiner in July 1990 reported
that he was able to ambulate without a limp and could heel
and toe walk. He could flex forward to reach his ankles.
Straight leg raise testing was negative to 90 degrees, both
supine and sitting. Muscle strength was 5/5 in all groups in
both the upper and lower extremities. Patellar reflexes were
2+. Sensation was normal to light touch. The examiner
indicated that there was no evidence of nerve compression at
that time.
A VA outpatient clinic report dated in December 1989 states
that the veteran complained of burning pain from his neck to
his lower back and that the pain was possibly more intense
than in the past. He indicated that he was unable to sleep
without taking Tylenol #3. On examination of his spine,
there was “adequate” strength and range of motion, but the
veteran complained of slight pain on left twist. There was
no tenderness or muscle spasm. Examination of the veteran’s
neck also revealed adequate strength and range of motion,
with minimal crepitus.
An August 1990 rating decision recharacterized the low back
disability as postoperative residuals of a herniated nucleus
pulposus at L5-S1 and increased the rating for the disability
to 20 percent. The veteran appealed the rating assigned for
the disability. A VA physical medicine specialist wrote in
September 1990 that the veteran complained of persistent left
lumbar pain, radiating into his left leg. Further physical
therapy was prescribed.
In December 1990, a VA outpatient examiner noted the
veteran’s complaints referable to his cervical and low back
areas. Further physical therapy was recommended. A VA
physical medicine physician stated in February 1991 that the
veteran’s cervical radiculopathy was “directly causally
related” to his service-connected back syndrome. No
pertinent clinical findings or other rationale for the
opinion was given.
The veteran wrote to the RO in January 1991 stating that his
service-connected verruca vulgaris warts, “90% of [which]
have turned to cancer,” warranted an increased rating. A
February 1991 rating decision denied an increased rating for
the service-connected keratosis pilaris and a rating decision
in September 1991 denied service connection for “cancerous
warts.”
The veteran appeared at a hearing before a hearing officer in
June 1991, accompanied by his wife, and D. D., who was
present as a witness. The veteran testified that he wore a
neck brace. He said he had had problems with both his
cervical and thoracic spine since the 1960s. He stated that
he underwent a CT scan and was told that all his back
conditions were interrelated. The veteran reported that he
had burning pain down the left side of his leg and across his
buttocks, sometimes going into his foot. The pain would
occur 3 or 4 times per month, sometimes after activity like
mowing the lawn and sometimes waking him at night. He also
described having tingling in his left leg 4 to 5 times per
month.
On VA examination in February 1992, the veteran did not
express any complaints referable to his skin and no abnormal
clinical findings regarding his skin were reported. The
general medical examiner indicated that the veteran had had a
lumbar laminectomy, but stated that no pertinent abnormal
clinical findings were noted on examination.
A VA orthopedic compensation examination was conducted in
August 1993. The examiner did not record any specific
complaints. He noted that the veteran walked with a normal
gait. There was no significant tenderness or muscle spasm
about the lumbar spine. Forward flexion was accomplished to
80 degrees, extension was to 30 degrees, lateral flexion was
possible to 35 degrees in each direction, and rotation was to
30 degrees bilaterally, with some complaints of pain and
stiffness. Straight leg raise testing was positive at
60 degrees on the right and at 45 degrees on the left.
X-rays of the cervical spine showed some straightening of the
spine, with narrowing of the C6-7 disc and eburnation and
spurring. X-rays of the lumbar spine revealed early spur
formation of the lower lumbar bodies with narrowing of the
L4-5 disc. The examiner’s diagnoses included “cervical
spine pain with x-ray evidence of some disc narrowing
herniation [sic] with spur formation,” “lumbosacral strain
with extension of facet bone at L3-4 and central bulging of
L5, S1 disc,” and “status post trauma of the upper thoracic
spine manifested by presence of a tender area in the upper
thoracic spinous process.”
In September 1993 a VA neurological examiner recorded the
veteran’s complaints that his legs felt weak, although they
did not actually give out on him. He also reported having
some pain radiate down his left leg on exertion, as well as
pain in his upper spine that radiated into his left arm. The
veteran complained that his hands got numb when he was
sleeping at night. He denied any sensory symptoms in his
lower extremities or bowel or bladder symptoms. On
examination, sensation was intact throughout, except for
slightly decreased vibration sense in the left toes and
diminished sensation to pinprick on the medial aspect of the
left foot. The ankle reflexes were slightly reduced, but the
veteran could walk on his heels and toes. Straight leg raise
testing was somewhat positive at about 50 degrees
bilaterally. The examiner concluded that there was
impairment of the left L5 nerve root, with some diminished
sensation in the left L5 distribution and possibly some
weakness in the left extensor hallucis longus muscle. A CT
scan of the lumbar spine in July 1991 reportedly showed no
disc disease and “minimal” degenerative joint disease. The
examiner’s diagnosis was of “some evidence of residual left
L5 radiculopathy.”
A VA spinal examination was conducted in April 1994. That
examiner noted that there were some complaints of pain, but
no significant muscle spasm or loss of range of motion or
strength in the cervical or thoracic spine. There was no
tenderness in the area of the cervical spine, but some
tenderness was reported in the thoracic spine. The examiner
indicated that the veteran’s complaints and the noted
findings were “due to a spondylosis of the cervical spine
with some narrowing of the C6-7 disc and spur formation. The
lumbosacral spine problem is of the same nature that is
spondylosis and postoperative diskectomies and he had known
very severe complaints or findings in this area.”
In accordance with the Board’s REMAND request, the veteran
was afforded VA orthopedic and neurologic examinations. It
was requested that the examiners review the claims folder and
offer an opinion as to the etiology of the veteran’s cervical
and thoracic spine disorders.
A May 1995 VA outpatient clinic record, at which time the
veteran was being evaluated for an unrelated ailment,
indicates that the veteran had no acute orthopedic or
neurological complaints. He reported that he occasionally
noted left leg tingling, however.
The veteran was afforded a VA compensation examination in
June 1995. His history of low back pathology was noted,
including the fact that he had sustained an on-the-job back
injury after service, for which he was out of work for 30
days. X-rays in June 1995 revealed minor degenerative
changes at C6-7 and C5-6, and mild osteophytosis of the lower
thoracic spine. The orthopedic examiner commented that he
felt “that the osteoarthritic changes evident in his
cervical spine and in his dorsal spine [are] related to the
natural process of growing older.” The neurological
examiner indicated that the veteran’s complaints of pain in
his upper back were most likely musculoskeletal in origin.
He stated further that “I cannot see any way that his pain
in his upper back or symptoms in his upper extremities would
be related to his lumbar disc condition, other than that
there is a degree of degenerative joint disease, which
underlies all of these complaints.”
VA dermatological examiners in June and July 1995 discussed
the veteran’s basal cell carcinomas on his face and scalp,
but did not mention any abnormality of the skin of the rest
of his body; neither did they make any reference to the
service-connected keratosis pilaris.
At the time of VA dermatology clinic visits in August and
September 1995, the examiners noted various lesions over the
veteran’s body, but no findings regarding the service-
connected skin disability were reported; neither did any
examiner relate the current skin findings to the service-
connected keratosis pilaris. In October 1995, a VA
dermatological examination was conducted to obtain a specific
report regarding the service-connected skin disability. That
examiner indicated that the veteran had been successfully
treated for keratosis pilaris and that none was evident at
that time.
In March 1996, the veteran was seen in the VA outpatient
clinic, where a full skin examination was performed by the
examiner. The veteran expressed no pertinent complaints at
that time. The diagnoses assigned were history of melanoma
and tinea pedis.
Analysis
Service connection for cervical and thoracic spine disorders
At the outset, the Board finds that the veteran has met his
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that these claims are well
grounded; that is, the claims are not implausible. See
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
Additionally, there is no indication that there are
additional, pertinent records which have not been obtained.
Accordingly, there is no further duty to assist the veteran
in developing the claims, as mandated by 38 U.S.C.A.
§ 5107(a).
Service connection connotes many factors, but basically it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces or, if
pre-existing such service, was aggravated therein.
38 U.S.C.A. §§ 1110, 1131. Such a determination requires a
finding of a current disability which is related to an injury
or disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992).
Also, disability which is proximately due to or the result of
a service-connected disease or injury shall be service-
connected. 38 C.F.R. § 3.310.
The Board notes the veteran’s hearing testimony to the effect
that he believes that his cervical and thoracic spine
disorders were caused by his service-connected lumbar spine
disability. However, lay persons are not competent to offer
medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992). Assessing the etiology of the cervical and
thoracic spine disorders requires a medical determination.
Therefore, although the veteran is certainly competent to
comment on his symptoms and even on the temporal relationship
between their onset and other events in his life, his hearing
testimony as to the medical etiology of those symptoms
carries no probative weight.
The medical evidence on this point consists of seemingly
opposing statements by VA physicians. In February 1991, one
physician commented that the veteran’s cervical radiculopathy
was “directly causally related” to his service-connected
back syndrome. An April 1994 examiner stated that the
cervical spine and lumbar spine problems were “of the same
nature,” in that both were due to an element of spondylosis.
The February 1991 examiner’s opinion does support the
veteran’s claim. However, that examiner provided no clinical
findings or other evidence to support his opinion. The April
1994 statement does not specifically indicate that the
cervical spine disorder resulted from the lumbar spine
disability, only that the two disorders had a certain
pathological finding in common. That statement, therefore,
is at best equivocal on the question of etiology.
Another VA examiner, in June 1995, however, stated
unequivocally that the osteoarthritic changes in the
veteran’s cervical and thoracic spine were the product of the
natural aging process. He further indicated that there was
no relationship between the veteran’s upper back or upper
extremity symptoms and his lumbar disc condition. That
examiner also commented that there was a degree of
degenerative joint disease that underlay all the veteran’s
spinal symptoms.
The Board finds that the weight of the medical evidence
indicates that veteran’s cervical and thoracic spine symptoms
are due to degenerative joint disease of the affected spinal
segments. The veteran’s degenerative disk disease of the
lumbar spine resulted from trauma to that area in service.
The Board is aware that degenerative joint disease may be
caused by trauma or may be due to the natural aging process.
There is no medical evidence that the veteran’s current
cervical or thoracic degenerative joint disease resulted from
trauma in service. Moreover, the June 1995 examiner
specifically stated that the arthritic changes in the
veteran’s cervical and thoracic spine were due to the aging
process. The February 1991 examiner did not offer any
evidence, in the form of clinical findings or other
rationale, to indicate specifically how the service-connected
lumbar disc disability had caused the veteran’s cervical
spine or upper back symptoms. The June 1995 examiner, on the
other hand, presented a clear pathological basis for the
veteran’s cervical spine symptoms, shown by x-ray evidence, a
basis that negates a causal relationship between those
symptoms and the service-connected lumbar disc disability.
There is no convincing medical evidence linking the local
lumbar spine trauma in service to the degenerative joint
disease that developed in the veteran’s cervical and thoracic
spine many years later.
Therefore, the Board concludes that the record does not
establish service connection for cervical or thoracic spine
disorders as secondary to the veteran’s service-connected
herniated lumbar disc disability. The preponderance of the
evidence is against the veteran’s claim.
Increased ratings
In general, an allegation of increased disability is
sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The Board finds that the veteran’s claim concerning
this issue is well grounded. In addition, there is no
indication that there are additional, unsecured records that
would be helpful in this case. Therefore, the Board has no
further duty to assist the veteran in developing his claim.
38 U.S.C.A. § 5107(b).
Disability evaluations are assigned by applying a schedule of
ratings which represent, as far as can practicably be
determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations
involve consideration of the level of impairment of the
veteran’s ability to engage in ordinary activities, to
include employment, as well as an assessment of the effect of
pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45,
4.59. Where there is a question as to which of two
evaluations should be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating; otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (1998).
Although regulations require that, in evaluating a given
disability, that disability be viewed in relation to its
whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet. App. 55 (1994). In evaluating the veteran’s
claim, all regulations which are potentially applicable
through assertions and issues raised in the record have been
considered, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
? Keratosis pilaris
The rating schedule does not specifically provide criteria
for rating keratosis pilaris. In such situations, it is
permissible to evaluate the veteran’s service-connected
disorder under the provisions of the schedule which pertain
to a closely-related disease or injury which is analogous in
terms of the function affected, anatomical localization and
symptomatology. 38 C.F.R. § 4.20. We conclude that the
veteran’s keratosis pilaris is most closely analogous to
either eczema or dermatitis exfoliativa, as both are
manifested by skin rashes and similar symptoms and clinical
findings.
Eczema, with slight, if any, exfoliation, exudation or
itching, if on a nonexposed surface or a small area, warrants
a noncompensable rating. With exfoliation, exudation or
itching, if involving an exposed surface or extensive area, a
10 percent evaluation is warranted. If there is exudation or
itching constant, extensive lesions or marked disfigurement,
a 30 percent rating is for assignment. With ulceration or
extensive exfoliation or crusting, and systemic or nervous
manifestations, or when the disorder is exceptionally
repugnant, a 50 percent evaluation is warranted. Code 7806.
Dermatitis exfoliativa is to be rated as scars,
disfigurement, etc., on the extent of constitutional
symptoms, or physical impairment. Code 7817.
Superficial scars which are poorly nourished, with repeated
ulceration, and superficial scars which are tender and
painful on objective demonstration warrant a 10 percent
evaluation. Other scars are rated on the degree of
limitation of function of the affected part. 38 C.F.R.
Part 4, Codes 7803, 7804, 7805.
The regulations provide that in every instance where the
minimum schedular evaluation requires residuals and the
schedule does not provide a zero percent evaluation, a zero
percent evaluation will be assigned when the required
residuals are not shown. 38 C.F.R. § 4.31 (1998).
As set forth above, rating decisions in 1991 denied an
increased rating for keratosis pilaris and service connection
for cancerous warts. In light of the veteran’s contentions
in this regard, the Board construes his comments as
requesting an increased rating for his skin disability on the
basis that his multiple skin cancers are part and parcel of
the service-connected disability and that their occurrence
indicates that the disability has worsened. However, there
is no basis in the record to connect the veteran’s clear
history of multiple skin cancers with his service-connected
skin disability, that is, there is no medical evidence that
any examiner has related the veteran’s skin cancers to his
keratosis pilaris, or found such to be a symptom thereof.
There is no indication in the record that the claimant has a
medical background or training, and he therefore does not
have the expertise to comment upon medical findings or
provide a medical opinion concerning the etiology or
causation of his skin cancer and its relationship to his
service-connected skin disorder. His statements and
contentions in this regard are thus entitled to no probative
weight. Layno v. Brown, 6 Vet.App. 465 (1994); Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992).
Moreover, there is no medical evidence that the veteran’s
keratosis pilaris has any current manifestations or that it
has been symptomatic for many years. The October 1995 VA
dermatologist indicated that no evidence of keratosis pilaris
was found.
In the absence of any medical evidence of any current
impairment due to the service-connected keratosis pilaris, a
compensable evaluation for the disability is not warranted
under the provisions of any pertinent diagnostic code. The
preponderance of the evidence as to this issue is clearly
against the veteran’s claim.
? Herniated nucleus pulposus prior to June 10, 1995
Pronounced intervertebral disc syndrome, with persistent
symptoms compatible with sciatic neuropathy, with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to
site of diseased disc, with little intermittent relief
warrants a 60 percent rating. A 40 percent evaluation is to
be assigned when the intervertebral disc syndrome is severe,
when there are recurring attacks, with only intermittent
relief. Moderate intervertebral disc syndrome, with
recurring attacks, warrants a 20 percent rating. A
10 percent evaluation is appropriate for mild intervertebral
disc syndrome. Postoperative, cured intervertebral disc
syndrome is to be rated 0 percent disabling. Code 5293.
Slight limitation of motion of the lumbar segment of the
spine warrants a 10 percent evaluation. A 20 percent
evaluation requires moderate limitation of motion. Severe
limitation of motion is required for a 40 percent evaluation.
Code 5292.
As noted above, the RO assigned a 40 percent evaluation for
this disability, effective June 10, 1995. However, the issue
of the veteran’s entitlement to a rating greater than
20 percent for the period prior to that date is still before
the Board. See AB v. Brown, 6 Vet. App. 35 (1993).
In August and September 1989, the veteran was essentially
asymptomatic from the standpoint of his service-connected
lumbar disc disability and no abnormal clinical findings were
recorded. At the time of a clinic visit in December 1989,
however, the veteran reported slight pain due to his service-
connected lumbar disc disability, although the clinical
examination remained essentially normal.
The record shows that in July 1990 the veteran was
essentially asymptomatic regarding his lumbar spine
disability. The examiner did not report any abnormal
clinical findings and commented that there was no evidence of
nerve compression. At the time of an August 1993
examination, the reported range of motion of the lumbosacral
spine was essentially normal, although the examiner indicated
that the veteran did complain of pain and stiffness.
Straight leg raise testing was positive at 45 degrees and
60 degrees in each leg.
A VA neurologist in September 1993 recorded similar clinical
findings, but noted the veteran’s complaints of pain
radiating down his left leg on exertion and a feeling of leg
weakness. On examination, sensation was slightly decreased
in the left L5 distribution, with some possible weakness in
the left extensor hallucis longus muscle. Straight leg raise
testing was again positive.
As noted above, a 40 percent rating for intervertebral disc
syndrome requires severe impairment, manifested by recurring
attacks with intermittent relief. During the several years
prior to June 1995, no muscle spasm or decreased range of
motion of the lumbosacral spine was reported. No significant
neuropathy was noted, although the September 1993 examiner
did find some decreased sensation and possible muscle
weakness. The Board finds that the medical evidence does
show some intermittent symptomatology referable to the
veteran’s service-connected herniated disc. The Board is
also cognizant of the veteran’s hearing testimony regarding
radiating pain into his left leg several times per month.
However, the Board finds that the evidence does not reflect
more than moderate symptoms prior to the June 1995 VA
compensation examination. Neither does the record indicate
that the service-connected herniated lumbar disc produced
increased impairment, including pain, on repeated use of the
lumbar spine or other functional loss as might warrant
additional consideration under the provisions of 38 C.F.R.
§§ 4.40, 4.45.
The Board concludes that the evidence does not reflect a
level of impairment due to the service-connected herniated
lumbar disc that meets the diagnostic criteria for more than
a 20 percent rating prior to June 10, 1995, under the
provisions of any applicable diagnostic code. Inasmuch as a
20 percent evaluation was in effect prior to June 10, 1995,
an increased rating prior to that date is not warranted.
The Board has considered the principle of affording the
veteran the benefit of any existing doubt. However, the
preponderance of the evidence is against the veteran’s claim
as to this issue.
ORDER
Service connection for cervical and thoracic spine disorders
as secondary to service-connected postoperative residuals of
a herniated nucleus pulposus at L5-S1 is denied.
A rating greater than 20 percent disabling for postoperative
residuals of a herniated nucleus pulposus at L5-S1 prior to
June 10, 1995, is denied.
A compensable rating for keratosis pilaris is denied.
REMAND
As noted initially in this decision, the veteran has filed a
timely substantive appeal concerning this issue of an
increased rating for generalized anxiety disorder with panic
attacks, currently rated 30 percent disabling. Additional
medical records reflecting psychiatric treatment later in
1997 and 1998 were submitted after the veteran was furnished
a statement of the case on this issue in June 1997, but
before the transfer of the case to the Board. The record
does not indicate that those records were considered by the
RO. See 38 C.F.R. § 19.37 (1998). More importantly, those
records indicate that the veteran’s psychiatric disorder may
have worsened during that period. Accordingly, another
psychiatric examination is needed to assess the current state
of the service-connected disability.
Further, as noted by the RO in the statement of the case
concerning this issue, the veteran’s claim for an increased
rating for his service-connected anxiety disorder was
received by the RO in December 1995. In November 1996, VA
revised the rating criteria for evaluating mental disorders.
The United States Court of Veterans Appeals (Court) has held
that when regulations concerning entitlement to a higher
rating are changed during the course of an appeal, the
veteran is entitled to a decision on his claim under the
criteria which are most favorable to him. Karnas v.
Derwinski, 1 Vet. App. 308 (1991). The June 1997 statement
of the case clearly referred only to the revised criteria; it
does not appear that any consideration was given to the
rating criteria that were in effect at the time the veteran
first filed his increased rating claim. Therefore, a Remand
is required to permit the RO to consider whether an increased
rating is warranted under either version of the rating
schedule.
At the veteran’s June 1991 hearing at the RO, he contended
that his foot problem was adjunct to his service-connected
lower back problem. However, there appears to be medical
evidence on both sides of the question of whether the veteran
currently has a foot condition that is due to his service-
connected lumbar disc disability. In May 1994, a VA
podiatrist stated that “a probable etiology” for the
findings noted on his examination “could be back disorder
related secondary to subjective and physical changes noted
during examination. [sic]” The meaning of that statement is
unclear to the Board. In the report of a subsequent
examination, in June 1995, the same podiatrist indicated that
the veteran’s “lower extremity symptoms are actually a
sciatic problem or radiculopathy.” Thus, it is unclear to
the Board whether or not the veteran does in fact have a foot
disorder that is separate and distinct from the
manifestations of his service-connected lumbar disc
disability.
It also appears that the RO has not considered the
applicability of a recent opinion of VA’s General Counsel,
VAOPGCPREC 36-97 (issued in December 1997), in evaluating the
service-connected back disability. That opinion noted that
intervertebral disc syndrome may involve loss of range of
motion, because the nerve defects and resulting pain
associated with injury to the sciatic nerve may cause
limitation of motion of the affected spinal segment. The
opinion held, therefore, that 38 C.F.R. §§ 4.40 and 4.45 must
be considered when a disability is evaluated under Diagnostic
Code 5293. Accordingly, on Remand, the RO will have an
opportunity to consider those provisions in connection with
the veteran’s claim for an increased rating.
In further regard to the veteran’s lumbar disc disability,
the record indicates that the veteran has received continuing
treatment for the disability, which, reportedly, has
increased in severity. Therefore, the Board believes that
the veteran should be afforded orthopedic and neurological
examinations to assess the current state of the disability.
In addition, copies of up-to-date records of all treatment
should be obtained.
Moreover, the record is unclear as to whether the veteran may
have applied for or may be in receipt of Social Security
disability benefits. The RO should ascertain the status of
any such claim and should request a copy of any award letter
or decision, as well as copies of any medical records used in
making such a decision that are not already of record. See
Murincsak v. Derwinski, 2 Vet. App. 363 (1992).
Accordingly, the issues relating to service connection for a
foot disability and to increased ratings for the service-
connected anxiety disorder and residuals of a herniated
lumbar disc are REMANDED to the RO for the following
additional actions:
1. With any needed signed releases from
the veteran, the RO should request copies
of up-to-date records of any examination
or treatment, VA or non-VA, the veteran
has received for his anxiety disorder or
his lumbar disc disability or for his
claimed foot disorder. All records so
received should be associated with the
claims file.
2. The RO should inquire of the veteran
as to whether he has applied for or is in
receipt of Social Security disability
benefits. If so, the veteran should be
requested to provide a copy of the award
letter or decision. The RO should then
request copies of any pertinent medical
records that were referenced by the
Social Security Administration that are
not already of record.
3. The veteran should then be scheduled
for special orthopedic, neurological, and
psychiatric examinations concerning his
lumbar disc and psychiatric disabilities
and his claimed foot disorder. The
claims folder and a copy of this REMAND
must be made available to and be reviewed
by the examiners in conjunction with the
examination. All indicated tests should
be accomplished. The examiners’ reports
should fully set forth all current
complaints, pertinent clinical findings,
and diagnoses and should describe in
detail the extent of any functional loss
due to the various disorders.
In addition to describing in detail all
current psychiatric symptoms and clinical
findings, the psychiatrist must comment
on the degree to which the psychiatric
pathology attributable to the service-
connected anxiety disorder affects the
veteran’s ability to establish and
maintain effective or favorable
relationships with people (social
impairment) and, in particular, the
degree to which the psychiatric symptoms
result in reduction in initiative,
flexibility, efficiency and reliability
levels (industrial impairment). The
examiner should also assign a Global
Assessment of Functioning (GAF) score and
should describe the meaning of the
assigned score.
For the orthopedic and neurological
examiners, consideration should be given
to any loss due to reduced or excessive
excursion, or due to decreased strength,
speed, or endurance, as well as any
functional loss due to absence of
necessary structures, deformity,
adhesion, or defective innervation. In
particular, the examiners should comment
on any functional loss due to weakened
movement, excess fatigability,
incoordination, or pain on use, and
should state whether any pain claimed by
the appellant is supported by adequate
pathology, e.g., muscle spasm, and is
evidenced by his visible behavior, e.g.,
facial expression or wincing, on pressure
or manipulation. The examiners’ inquiry
in this regard should not be limited to
muscles or nerves, but should include all
structures pertinent to movement of the
joint. It is important for the
examiners’ reports to include a
description of the above factors that
pertain to functional loss due to the
lumbar disc disability that develops on
use. In addition, the examiners should
express an opinion as to whether pain or
other manifestations occurring during
flare-ups or with repeated use could
significantly limit functional ability of
the affected part. The examiners should
portray the degree of any additional
range of motion loss due to pain on use
or during flare-ups.
The orthopedic and neurological examiners
are specifically requested to provide
opinions as to the following questions:
? Is it at least as likely as not that
the veteran currently has a foot
disorder that is separate and distinct
from manifestations due to the
service-connected lumbar disc
disability?
? If such a separate foot disorder is
present, is it at least as likely as
not that the service-connected lumbar
disc disability caused that foot
disorder to increase in severity and,
if so, in what way?
All opinions expressed should be
supported by reference to pertinent
evidence.
3. Upon completion of the development of
the record requested by the Board and any
other development deemed appropriate by
the RO, the RO should again consider the
veteran’s claims for secondary service
connection for a bilateral foot
disability and for an increased
evaluation for the service-connected low
back disability, with particular
consideration of the provisions of
38 C.F.R. §§ 4.40, 4.45 and also Allen v.
Brown, 7 Vet. App. 439 (1995)
(aggravation of a non-service-connected
disorder by a service-connected
disability). The RO should also again
consider whether an increased rating for
the veteran’s anxiety disorder is
warranted under the provisions of the
rating schedule that are currently in
effect, as well as those that were in
effect prior to November 1997, with
application of those criteria that are
more favorable to him. In addition, the
RO should again consider the issue of an
increased rating for the veteran’s
service-connected lumbar disc disability,
subsequent to June 10, 1995. If action
on any issue remains adverse to the
veteran, he and his representative should
be furnished a supplemental statement of
the case and should be given an
opportunity to respond thereto. The case
should then be returned to the Board for
further appellate consideration, if in
otherwise order.
By this REMAND, the Board intimates no opinion, either legal
or factual, as to any final determination warranted as to
these issues. No action is required of the veteran until he
is notified by the RO. The purpose of this REMAND is to
obtain clarifying information and to provide the veteran with
due process.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
N. R. Robin
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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